16 Appeals under s 56A are related to questions of law only, not merit. A finding of fact cannot be considered in a s 56A appeal. Nor is a fine tooth comb approach to the Commissioner's decision appropriate. Grounds 1, 2, 4 and 5 invite the Court to embark on an impermissible merits review of the Commissioner's decision.
Delay
17 There has not been a delay of seven and a half months given the Appellant's application to reopen its case which resulted in a final day of hearing in April 2009. In R v Maxwell the Court of Criminal Appeal held at 462 that delay alone is not a ground of appeal. Heydon JA did not adopt the words "operative delay" in Hadid, rather he was summarising the appellant's submissions. His Honour did not decide the issue of delay in that matter. The Appellant's argument in this case appears to be that delay required the Commissioner to give more detailed reasons and that failure to do so gives rise to a miscarriage of justice. That assumes the Commissioner's reasons are otherwise inadequate but they are not.
Failure to give adequate reasons - parking
18 The question whether the Commissioner failed to give adequate reasons will be dealt with under each issue below. However, it is necessary to first identify the principles to be applied in determining what constitutes the content of an adequate statement of reasons where there is only an appeal on a question of law. The Council relied on McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 to the effect that the failure to state a finding of fact is not an error of law unless it is a breach of the principle that justice must be seen to be done.
19 The Commissioner considered parking as the Council's contention required as identified in the judgment at [13]. The issue was failure to accommodate on-site the parking demand from the proposed development. The Commissioner referred extensively to Mr McLaren's evidence. She also refers extensively to the material prepared by Mr Coady for the Appellant and to the material prepared by Mr Hallam as the parties' single expert in Waugh Hotel Management. The Appellant tendered Mr Hallam's report from the first appeal (exhibit H). In making her findings the Commissioner discusses Mr McLaren's evidence in detail. The Commissioner did not accept Mr McLaren's opinion and explained her reasons for not doing so. She refers, accurately, to the oral evidence given by Mr McLaren in explaining why she did not accept his evidence.
20 The Commissioner:
(i) Accepted that the closure of the Marrickville RSL Club and the ANZAC Memorial Club represented a changed circumstance but rejected the appeal on the merits;
(ii) Concluded correctly that no surveys were conducted for the Marrickville RSL Club itself;
(iii) Found that Mr McLaren's conclusion that there was increased parking availability on weekday afternoons was not supported by the evidence. In making that finding the Commissioner refers expressly to documentary material in the evidence relating to parking from development approvals for the Marrickville RSL Club (exhibit 15);
(iv) Accepted that the rates in DCP 19 were excessive but otherwise had proper regard to the aims and objectives of the DCP;
(v) Expressly acknowledged the fact that Mr McLaren visited the area on a number of occasions but concluded correctly that his report did not contain a robust analysis or survey of the critical period between 2pm and 5pm when parking demand for shopping was at a peak;
(vi) Rejected Mr McLaren's conclusion (based on Mr Coady's 2008 surveys) that parking within a 400m radius of the site should be taken into account in determining available parking;
(vii) Quoted directly and rejected Mr McLaren's central conclusion "that the proposed development is supportable on parking grounds, particularly in view of the increased parking availability during weekday afternoon periods due to the closure of the Marrickville RSL Club" and explains her reasons for that rejection;
(viii) Stated succinctly that she was not persuaded that Mr McLaren's conclusion was supported by his limited analysis;
(ix) Concluded (by direct reference to the parking issue in the contentions) that she was not satisfied that the evidence provided to the Court justified the failure to provide parking on-site in the circumstances of the case and was antipathetic to the aims and objectives of the DCP.
21 These are pure findings of fact explained in detail in the judgment. The Commissioner's reasons were clear on the parking issue. That Mr McLaren's view was that only three parking spaces were required is not to the point. This was a pure question of fact and the Commissioner rejected Mr McLaren's conclusion on the evidence. This cannot be reviewed in this s 56A appeal.
Failure to give adequate reasons - social impact
22 The documentary expert evidence before the Commissioner on this issue was extensive. The areas of agreement and disagreement between Dr Stubbs, for the Council, and Ms George, for the Appellant, were succinctly set out in their joint report (exhibit 6 in the proceedings before the Commissioner).
23 Critically, both experts agreed that the primary catchment within a 300m radius of the subject site is more important in an assessment of social impact than the secondary catchment within a 1km radius of the site. As with the parking issue, the Commissioner refers extensively to relevant evidence from both of these experts. Her reasons disclose a careful and balanced analysis of the expert evidence. The Commissioner's analysis demonstrates that she understood the issue raised and the evidence given in relation to it.
24 The Commissioner's reasons for preferring Dr Stubbs's evidence over Ms George's are plain from the judgment. It is not correct to say that she "rejected" Ms George's evidence. In some respects she accepted Ms George's opinion. Critically, Dr Stubbs gave a much more detailed assessment of the census data.
25 Having analysed the evidence, the Commissioner's conclusion was that the proposed hotel did not satisfy the objectives of s 5(a)(i) and (ii) of the EP&A Act or the general objectives of the Marrickville LEP.
Section 79C(1)(b) of the EP&A Act
26 The principal attack on the Commissioner's findings relates to the claimed irrelevance of Dr Stubbs's evidence to a merits assessment under s 79C(1)(b) of the EP&A Act. If Dr Stubbs's evidence was inadmissible on this ground so was Ms George's. If the Appellant is correct on this basis then Jagot J's judgment in Waugh Hotel Management is fundamentally flawed for the same reason.
27 The parties are bound by the way they conducted the hearing, and there was no objection at the hearing to that part of the evidence of Dr Stubbs the subject of criticism in these proceedings. Ground 4(b) raises the issue of admisibility into evidence of Dr Stubbs's report but no objection was taken at the hearing. Limited objections were made to Dr Stubbs's report at the time it was tendered. No objection was taken to Dr Stubbs's report on the basis of relevance at the time the report was tendered. It was not open to the Appellant to object to the admission of that evidence on relevance at the conclusion of the hearing before the Commissioner, any more than it is open to the Appellant to raise the matter now on appeal.
28 The Appellant's submission to the Commissioner and on this appeal confuses the economic impact of a development with its social impact. The evaluation of development applications would be seriously truncated if the assessment of social impact was to be limited in the manner suggested by the Appellant. There are strong suggestions in this submission of a policy complaint on behalf of a hotelier that councils (and the Court) are jurisdictionally excluded from any such assessment where alcohol is involved because of the operation of the Liquor Act. Legal questions of this nature were raised and rejected in Waugh Hotel Management. They were not raised before the Commissioner.
29 The Commissioner did not err in her merit assessment under s 79C any more than Jagot J did in the first appeal when her Honour concluded at [103]:
In consequence, the debate in this case about the risk of alcohol related harm by increasing the density of licensed premises in the centre of a particularly disadvantaged community weighed overwhelmingly in favour of the detailed analysis of Dr Stubbs. Accordingly, on the rather one sided evidence available in this case the risks of alcohol related harm from increasing the density of licensed premises in this highly disadvantaged community would be a further independent ground for refusal of this application.
30 The expert social planning evidence in this appeal was not as one-sided as it was in the first appeal. Dr Stubbs's analysis was similarly detailed in these proceedings. The closure of the Marrickville RSL Club and the ANZAC Memorial Club did not dispel her concerns about the clustering of hotels in the primary catchment within 300m of the subject site. The Commissioner carefully assessed the expert evidence of both witnesses and concluded that she preferred the evidence of Dr Stubbs and that the development application should be refused. This was a finding of fact disclosing no legal error.
Finding
31 Grounds of appeal may only raise errors of law. Erroneous findings of fact or inappropriate or illogical inferences do not constitute an error of law (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139). In her lengthy judgment the Commissioner describes the site and proposed development at [1]-[7], identifies the issues raised by the parties in the statement of contentions at [13], sets out the evidence of resident objectors at [22]-[24], sets out the evidence of the single expert appointed for the traffic and parking issues at [26] and [40]-[41], sets out the contents of the Statement of Environmental Effects prepared on behalf of the Appellant by Mr Coady at [27]-[29] and the evidence of Mr Hallam at [33]-[37]. The parties' respective submissions on the expert evidence are set out at [38] and [42]-[45]. In terms of social impact the Commissioner sets out the evidence of the Appellant's expert at [46]-[52], the Council's expert at [53]-[63] and the contents of the joint statement and points of difference at [64]-[67]. The Commissioner's findings commence at [68]. She deals with the parking issue at [70]-[79] and the issue of social impact at [82]-[93]. Six figures are annexed to the judgment showing the locality and relevant dimensions of the social planning evidence.
Delay
32 The Appellant relied on Hadid, Maxwell (a criminal case) and Expectation to argue that there had been delay in the delivery of judgment. The facts in those cases are quite different to the facts in this matter involving substantial delay in the delivery of judgment. In Maxwell (1998) a judgment convicting the appellant on a charge of murder was delivered by the trial judge ten months after the trial had concluded. The appellant appealed his conviction to the Court of Criminal Appeal on several grounds including that the trail miscarried by reason of the delay between hearing and verdict and that there was inadequate consideration of evidence and submissions. In considering whether the delay in delivering judgment amounted to the trial being miscarried, the judgment of Spigelman CJ, Sperling and Hidden JJ stated at 462:
Delay is not, however, of itself, a ground of appeal. Nor does the delay in and of itself indicate that the trial miscarried or that the verdict is in any manner unsafe. Nevertheless, a comparison between the judgment and the issues in the trial may indicate that the effect of delay has been such as to constitute a miscarriage of justice.
33 The court emphasised at 463 that delay creates an additional onus on the judicial officer to provide reasons:
…a delay of the order of 10 months is, of itself, such as to require a more comprehensive statement of the relevant evidence than would normally be required, in order to manifest, for the parties and the public, that the delay has not affected the decision. For the reasons we will give below, his Honour's judgment is unsatisfactory in this regard. His Honour failed to give reasons of a character which the law required him to give in all the circumstances of the case, including the circumstance of the delay between the trial and delivery of judgment.